How to Keep Parties in Negotiation

One of the mediator’s primary jobs is to keep the parties negotiating. The more time they spend negotiating, the stronger their buy in to close the deal. Just think back to the last time you purchased a car. The car salesman probably did just about anything to keep you talking. The longer you stay, the more strongly the image of that car sitting in your driveway becomes.

Unfortunately, a party may nearly shut down the negotiation by pitching a hard offer — an outrageous proposal that feels insulting to the other party and gives the other side no chance of winning. As mediator, your job is to soften that hard offer to keep the other party from walking away.

The first step is to ask diagnostic questions, to find out where that outrageous offer came from and what motivated it. In your question-and-answer session, you’re likely to find out one of the following:

  • The offer or counteroffer isn’t as outrageous as it first seemed. Sound reasoning and solid proof may be available to back it up. As a result, you may have a fighting chance to provide the other side with a reasonable argument in support of that position.

  • The outrageous offer or counteroffer is part of a negotiation strategy or tactic. The party making it wants to appear unreasonable to gain an initial advantage or to simply send the message that he’s angry.

To soften the blow of an unreasonable offer or counteroffer, explain the circumstances that motivated it or suggest that it’s just the way the other side is opening the negotiation — that it’s not an ultimatum or an insult, just an idiosyncratic or ineffective strategy or tactic. Here are some examples of how you can soften a hard offer:

  • I know the plaintiff’s opening demand of $3.2 million seems frivolous or insulting, but before you fly out of your chair, let me remind you that it’s an opening offer.

  • I know the plaintiff’s move from $15 million to $14.9 million seems to be an outrageous and maddening negotiation strategy, but let me give you the plaintiff’s thinking on that. (Try this only if the plaintiff has given you permission to convey his thinking.)

  • The plaintiff’s opening demand is $100 million. You and I both know that’s not a serious way to open negotiations. I believe the attorney is trying to satisfy an unreasonable client. I’ll be helping him bring his client back into the range of reason throughout the day.

  • I know you don’t want to hear this, but the defendant’s opening offer is zero. I can see how angry that makes you. I believe the defense attorney may simply be making an effort to satisfy an angry client with whom I’ll have several heart-to-heart talks during the course of the mediation.

  • The defendant’s opening offer is $1,000. I understand you think you’d be less insulted if he had offered nothing. I’d prefer to get a reasonable counter from you instead of an equally ridiculous response, because that will help me move them into the range of reason.

Reassure the parties. If they falter in their resolve to keep negotiating, tell them that as long as they’re moving in the same direction, a deal is possible. Also consider telling them that you’re not going to needlessly keep them in the room if you don’t believe in the strong possibility that the parties’ bottom lines already do, or will by session’s end, overlap.

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